Transcript Information Classification Foreign Policy and National

Information Classification
Foreign Policy and National Security
ITRN 701-007
Erik Smidt
Elizabeth Fiorentino
Summary
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History
Issues
Revisions
Interests
Questions
Why Classify?
• "Damage to the national security"
– means harm to the national defense or foreign
relations of the United States from the unauthorized
disclosure of information, to include the sensitivity,
value, and utility of that information.
Definition
• "Classification" means the act or process by
which information is determined to be classified
information.
• "Information" means any knowledge that can be
communicated or documentary material… that is
owned by, produced by or for, or is under the
control of the United States Government.
• "Control" means the authority of the agency that
originates information, or its successor in
function, to regulate access to the information.
Sec. 1.5. Classification Categories
• Information may not be considered for classification
unless it concerns:
– military plans, weapons systems, or operations;
– foreign government information;
– intelligence activities (including special activities), intelligence
sources or methods, or cryptology;
– foreign relations or foreign activities of the United States,
including confidential sources;
– scientific, technological, or economic matters relating to the
national security;
– United States Government programs for safeguarding nuclear
materials or facilities; or
– vulnerabilities or capabilities of systems, installations, projects or
plans relating to the national security.
History: Revolution to WWI
• Revolutionary War: Trusted Courier, Fake
Documents and Double Agents
• Civil War: Lack of Discretion
• Economic Espionage Rampant
• Practiced by Labor and Corporate Spies
• Spanish American War: need to organize
bureaus within Army and Navy was led by
Secret Service
• WWI: Germany secretly purchasing plans and
equipment used to supply the British
World War II: “The Wizard War”
• Worry about German and Japanese spies
• Technological edge critical to success
• Rapid growth in size of military and civilian
government
• British System: adopts practices already in
use by allied government
• Soviet sympathizers cooperate with ally
Cold War
• Soviet Union maintains a high budget for
intelligence services
– Profit seeking
– Third Country Nationals
– Disgruntled
– Sympathizers
• Larger reliance on protecting technology
and communications
• Economic Espionage Important
Post Cold War
• Economic Espionage Gains Status
• Protecting Operations & Sources
• Protecting Technology & Information
Systems
• 2008 "Targeting U.S. Technologies: A Trend Analysis of Reporting
from Defense Industry"
• https://www.dss.mil/GW/ShowBinary/DSS/special_alerts/specialalert
012609.html
Classification Authority
• Individual charged with responsibility to
determine level and state reason for
classification
• Must determine declassification date at
time of creation
• Develop and publish Classification Guides
for users and Agencies
Sec. 1.6 Limitations on
Classification
“If there is significant doubt about the need to classify information, it shall
not be classified.”
– In no case shall information be classified in order to conceal violations
of law, inefficiency, or administrative error; to prevent embarrassment to
a person, organization, or agency; to restrain competition; or to prevent
or delay the release of information that does not require protection in the
interest of national security.
– Basic scientific research information not clearly related to the national
security may not be classified.
– The President or an agency head or official designated under Sections
1.2(a)(2), 1.2(b)(1), or 1.2(c)(1) may reclassify information previously
declassified and disclosed if it is determined in writing that
• the information requires protection in the interest of national
security; and
• the information may reasonably by recovered. These reclassification
actions shall be reported promptly to the Director of the Information
Security Oversight Office.
Limitations on Classification
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Information may be classified or reclassified after an agency has received a
request for it under the Freedom of Information Act (5 U.S.C. 552) or the
Privacy Act of 1974 (5 U.S.A. 552a), or the mandatory review provisions of
this Order (Section 3.4) if such classification meets the requirements of this
Order and is accomplished personally and on a document-by-document
basis by the agency head, the deputy agency head, the senior agency
official designated under Section 5.3(a)(1), [FN1] or an official with original
Top Secret classification authority.
Collateral (NISP)
• Confidential: would cause “damage” to national
security if disclosed
– Lay out of Cleared American Access space
• Secret: would cause “serious damage” to national
security
– Equipment specified for CAA space
• Top Secret: release would cause “exceptionally grave
damage”
– Cryptographic Keys used by various agencies
Special Programs (JFAN 6/4)
• Specified Handling Instructions for certain
classified information
• Special Access Program (SAP)
– Existence of program would negate utility
• stolen Sigma Machine in WWII
– S or TS
• Sensitive Compartmented Information (SCI)
– Identities or Methods of collecting information
– requires TS
Espionage Act of 1917
• Crime to:
– interfere with the operation or success of the
Armed Forces of the United States or promote
the success of its enemies
– convey false reports or false statements with
intent to interfere with the operation or
success
• Remains a law but last used in 1971
Updates of Espionage Act
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Cryptographic Intelligence and Methods:18 USC 798
Nuclear Weapons and Materials (Restricted Data): Atomic Energy Act of
1954, 42 USC 2162, 2163, 2168, and 7383
Industrial Espionage Act of 1996 (Industrial Trade Secrets): 18 USC
Chapter 90
Intelligence Identities Protection Act (intelligence sources): 50 USC 421–
426
Computer Fraud and Abuse Act (Data Stored on Computers): 18 USC 1030
and the Stored Communications Act: 18 USC 2701
Health Insurance Portability and Accountability Act (patient medical
records): 110 Stat 1936
Video Privacy Protection Act (video tape rental and sale records): 18 USC
2710
Executive Orders: Reagan
• EO 12356 11 pages
• Original order current system is based on
Executive Orders: Reagan
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Original Classification
Classification Authority
Classification Categories
Duration of Classification
Identification and Markings
Limitations on Classification
Declassification Authority
Transferred Information
Systemic and Mandatory Review for Declassification
General Restrictions on Access
Special Access Programs
Access by Historical Researchers and Former Presidential
Appointees
• Information Security Oversight Office
Executive Orders: Clinton
• EO 12958 27 pages
Changes:
• General Responsibilities
• Implementation
• Appeals
• Special Access Programs
• 10 years auto declassification
• Classification Standards
Executive Orders: Clinton
• Two others
• EO 12972
– Changed definitions
• EO 13142
– Longer auto declassify date
Executive Orders: Bush
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EO 13292 24 pages
Changed Classification Authority: VP
Special Access Programs
Computer Systems
Created new handling instruction for CUI
– Controlled Unclassified Information
Classified Information Procedures Act
of 1980
• Determines at an early stage if there is a dilemma
between disclosing classified info or dismissing a court
case
• Limit the practice of graymail by criminal defendants
– Graymail is the threat to disclose classified government information by a
criminal defendant
– Requires defendants to disclose if they are going to use classified info in
their defense pre trial
• Protects unnecessary disclosure of info
National Archives
• Has an Information Security Oversight
Office (ISOO)
– Responsible for the Policy and oversight of
government wide security classification programs
– Authority from: EO 12958 and EO 12829
– Three components
• Classification Management staff
• Operations staff
• The controlled Unclassified Information (CUI)
Office
Freedom of Information Act
• Signed into Public Law by President Johnson September
6, 1966
– Consistent with what people have “a right to know”
– Does not apply to Congress, the States, the courts and the central
offices of the White House
• States do have FOIA like legislation
9 exemptions to FOIA
– in the interest of national defense or foreign policy
and classified
– internal personnel rules and practices of an agency
– exempted from disclosure by statute
– trade secrets and commercial or financial information
– inter-agency or intra-agency memoranda or letters
– personnel and medical files
– records or information compiled for law enforcement
purposes
– information of an agency responsible for the
regulation or supervision of financial institutions
– geological and geophysical information
FOIA
• Problems?
– Bureaucratic delay
– Excessive charges levied
• 1974 Amendment
– Supposed to remove obstacles to information
– Federal Judge can now review information to decide if it is classified
– Deadline for agencies to respond to request for information
• 1996 Amendment –Electronic Freedom of Information
Act (E-FOIA)
– needs to be in an electronic format, and have electronic reading rooms
Cases regarding FOIA
– Hoover
– USDOJ v. Landano
– Scott Armstrong, et al. v. Executive Office of
the President
– Barbara Schwartz
Problems
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Classification Authority
Protected Interests
On Time Release
Foreign Government Obligations
Classified Accumulation
Cheney Controversy
Authority & Proper Use
• Reduce List of Authorizers to
Clinton/Reagan era
• Enforce Declassify Date Requirements
• Creation of Declassification Centers within
Each Agency to Review documents
Foreign Info
• Conflicts of US law and treaties with
information classification
• This pertains to any information from a
foreign source.
Final Note
Lessons Learned – 9/11
The Pentagon
216 Safes located in damaged area
Problem…
• Contents dated back to 1960s
• New DOD requirements for annual house
cleaning
• Debate to create a Declassification Center
Questions?